Home ROSA YAFFE, executrix & another vs. S. S. PIERCE COMPANY.

3 Mass. App. Ct. 792

December 9, 1975

These are cross petitions brought under G. L. c. 231A by landlords and their tenant for an interpretation of a real estate tax clause in a lease and determination of the tenant's obligation thereunder. The cases were consolidated for trial and submitted upon an "agreed statement of facts." The tax clause stated in pertinent part that "the Lessee shall pay . . . in each calendar year of the lease term, as additional rent, forty-five (45%) percent of the increase in the total real estate tax assessed . . . as such . . . tax exceeds that assessed . . . for the year 1969." From 1970 to 1972, the tenant paid 45% of the difference between the original tax in the base year (1969) and the original tax in subsequent years. In 1973 the landlords received abatements (which had been sought for each tax year) for all years, 1969 through 1972, and billed the tenant on the basis that the tax clause required the tenant to pay 45% of the difference between the final tax after abatement for 1969 and the final tax after abatement for the subsequent years. A Superior Court judge adopted the landlords' interpretation of the clause and rejected that of the tenant, which contended that the clause required it to pay 45% of the difference between the original tax for 1969 and the tax after abatement for subsequent years. The cases are governed by Thorner v. Stone, 357 Mass. 782 , 783 (1970), in which "tax assessed" was interpreted to mean the tax as abated.

Judgments affirmed.

Home YVONNE LEBLANC'S CASE.

3 Mass. App. Ct. 792

December 9, 1975

The employee, a waitress-bartender, fell and was injured while at work. The question raised on appeal from the judgment of the Superior Court is the amount of the employee's average weekly wage for compensation purposes. On the basis of her employer's wage schedule the single member, whose findings and decision were adopted by the reviewing board with modifications, calculated her average weekly wage to be $36.80 to which he added a $5.00 allowance for meals and $45.00 a week for tips (total average weekly wage, $86.80). On appeal from the decision of the board, the judge, discounting the testimony of the employee with respect to her income from tips, found her total average weekly wage to be $36.80. In addition to the obvious miscalculation by the single member in including an allowance for meals where such an allowance was already included in the schedule from which he computed her average weekly wage, the evidence, as matter of law (Hachadourian's Case, 340 Mass. 81 , 85-86 [1959]; compare Chapman's Case, 321 Mass. 705 , 707 [1947]), does not support his finding of $45 a week for tips as an increment of her average weekly wage. The judge erred in denying the employee's motion for recommittal to the board for further findings of fact with respect to the employee's average weekly wage. Her appeal from the judgment is sustained. The judgment is set aside. A new judgment is to be entered in the Superior Court remanding the case to the board for further findings consistent with this opinion, including findings pertinent to that portion of the employee's average weekly wage

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derived from tips (see Messersmith's Case, 340 Mass. 117 , 120, 124 [1959]) and to correct the miscalculation in the allowance for meals.

So ordered.